McCabe v. McRea , 58 Me. 95 ( 1870 )

Appleton, C. J.

The plaintiff brings this action to enforce his lien for labor done by him, on the ship Empire, while in the employ of the defendant. The defendant has been defaulted. The owner resists the claim for a lien on various grounds, wdfich will be considered in their order.

1. By statute of 1858, c. 15, § 1, a lien is given on vessels for labor thereon, both before and after launching. It is objected that the writ does not distinctly state whether the labor, for which a lien is sought to be enforced, was done before or after the vessel was launched. But the statute does not require that it should. It is enough that it is in the form prescribed by the statute. Were it necessary to be more specific, an amendment would be allowed if desired.

2. It is urged that the plaintiff was employed by the defendant, to whom he looked for pay, and to whom he was told to look for pay by the claimant. But this is the very case provided for in the form of the writ given by statute, which sets forth a claim for a lien for work done for the defendant, “ who owes the same, neglects and refuses to pay.”

By § 1, “any person, who furnishes labor and materials for building a vessel, shall have a lien upon such vessel therefor, which may' be enforced, by attachment of the vessel, within four days after she is launched,” etc.

The plaintiff having labored upon the Empire, has a lien thereon unless he has waived it by agreement or lost it by neglect. The lien is the result of labor. It is the statute security for labor. It attaches unless there is an agreement that it shall not. It attaches notwithstanding the labor is performed for a contractor, to whom it is charged. In Purinton v. Hull of a New Ship, 2 Curtis, 416, Mr. Justice Curtis, referring to the statute of this State, R. S., c. 125, § 35, says, “ upon the whole, I cannot avoid the conclusion, that the workmen on a vessel are entitled to a lion under this act, though they be employed by one who contracts with the owner.” The act of 1858, c. 15, § 1, does not materially vary from R. S., c. 125, § 35, to which Mr. Justice Curtis refers. In the Sam Slick, 1 Sprague, 289, it was held that a charge for material made against the builder alone, without naming the vessel, did not constitute a waiver of the lien, nor was it conclusive evidence of an intention to rely upon the personal responsibility of the builder. In Page v. Hubbard, 1 Sprague, 335, Mr. Justice Sprague held that a maritime lien, for materials furnished a vessel built in Massachusetts, is not lost by the creditors faking the debtor’s negotiable promissory note, which is produced at the hearing, and offered to be cancelled.

But in this case the plaintiff denies that any notice was given him that he must look to the defendant alone. The statute gives to the laborer a lien. It is for the claimant to prove that he has knowingly surrendered or waived such lien. This the evidence fails to show. It does not even show that the question of an abandonment of lien was distinctly presented for his consideration.

3. It was decided in Story v. Buffum, 8 Allen, 35, that a lien on a ship will be dissolved, if the person claiming it, in his statement says, that the owner of the vessel is unknown, when he has been informed, and believes, that she was owned by the person wdio, in fact, owned her. Assuming, but without assenting entirely to the correctness and applicability of that decision, yet the claimant fails to establish the facts within the principle of that case. It does not appear that the plaintiff knew the claimant owned the vessel. The inquiry wras not made of him. The claimant does not even state that he informed the plaintiff of his title. Mere conjecture is not enough. The statute requires knowledge, before the owner’s name is to be inserted. The proof does not satisfy us that the plaintiff knew in whom the title was.

4. By § 5, “ If the vessel has been launched at the time of the attachment, she shall be attached in the manner provided by law for the attachment of personal property.

The attachment was made in the usual mode. It appears, however, that the officer making the attachment took a receiptor. But that has nothing to do with. this case. The issues, presented by § 14, are the amount due the defendant, and for how much of that amount the plaintiff has a lien. Whether the officer retains the vessel in his possession, or not, are facts totally irrelevant. If the officer has omitted or neglected his duty, the plaintiff has a remedy against him for such neglect. It would be a novel defense against a just claim, that an officer, over whom the plaintiff has no control, has defeated the suit by his official neglect in not retaining the possession of property as he should have done. If the officer cannot sell the vessel according to the provisions of § 17, he may be liable to the plaintiff, if such inability is the consequence of his neglects or omissions of duty, but it is no answer to the plaintiff’s claim.

5. The defendant has been defaulted. But this default will not be evidence against the claimant. The evidence shows labor done on the Empire, by the plaintiff, but it fails to show the amount and value of such labor. By § 15, “If the parties waive a trial by jury, the questions in the fourteenth section hereof shall be decided by the court, upon a hearing, or upon the report of an auditor to be appointed by the court.”

The evidence is satisfactory that the plaintiff has a lien for the amount of his labor. That amount is to be determined, if the parties cannot agree,u by the judge at nisi prius.

Judgment for the plaintiff that he has a lien upon the Empire for his labor upon the same, — the amount to be fixed by the judge at nisi prius.

Kent, Walton, Barrows, Danforth, and Tapley, JJ., concurred.